*COMPLIMENTARY ISSUE* Volume. 7 Issue. 21 – June 7, 2023
This week we report on the first successful GOS-E (Criterion 4) CAT determination. Of significance, the GOS-E was administered by an OT, rather than the required neuropsychologist, for either party, which the Tribunal confirmed would go to weight. Ultimately, despite what appears at least to be relatively good functional abilities in numerous aspects of life and having returned to work for one year post MVA, the Tribunal was satisfied that the applicant satisfied the CAT criteria.
GOS-E CAT Confirmed – Injured in a July 2018 accident, the applicant Chaffey, in 22-001049 v Wawanesa, sought a CAT determination pursuant to s. 3.1 (1) 4 of the Schedule (Criterion 4).
In order to qualify under Criterion 4, there firstly must be diagnostic evidence of brain trauma. Both parties agreed that the first prong of the test was met by way of a March 2019 MRI confirming a traumatic axonal brain injury. They disagreed however on the extent of the traumatic brain injury (TBI) sustained and its impact on function. Chaffey’s assessors diagnosed him with a moderate to severe TBI, whereas Wawanesa’s assessor diagnosed him with a mild complicated TBI.
Following the subject accident, Chaffey returned to work in October 2018 on modified hours and duties and eventually returned to working full duties. He worked 35 hours per week and spent 5 days per week in Mississauga and went to his Gilmour residence on weekends.
He went on long term disability (“LTD”) in October 2019. A note from the LTD insurer indicates that he went off work secondary to traumatic brain injury, post-concussion syndrome, adjustment disorder and depression. Prior to the accident, he also worked part-time as a wedding officiant and did approximately 30 weddings per year. Both parties’ assessors agreed that Chaffey could not return to work in his previous capacity, however differed with respect to the extent to which he was restricted.
The specific test for the within matter was whether there was confirmation of a Lower Moderate Disability (Lower MD or Lower MD*) one year or more after the accident under the Extended Glasgow Outcome Scale (“GOS-E”). The “GOS-E structured interview is meant to take a snapshot of a person’s current status in the past week and does not consider past impairment or future prognosis.” The parties disagreed as to whether Chaffey sustained a Low Moderate Disability or an Upper Moderate Disability with respect to employment, social and leisure activities and relationships with family and friends. A Low Moderate Disability equates to one being “Unable to return to work in their previous capacity and able to only work in a sheltered workshop or non-competitive job”, whereas a Low Moderate Disability entailed that an applicant was “Able to return to work in a reduced work capacity.”
Wawanesa contended that Chaffey’s CAT assessments should be afforded little weight, as the neuropsychologist did not administer the GOS-E, relying upon the disability ratings assigned by the by the OT who actually administered the GOS-E. Further, they noted that the Guidelines specifically notes that the GOS-E should not be done by practitioners involved in the acute care of the patient. The Tribunal found persuasive prior Tribunal decisions (“Abdi” and “Adams”) wherein CAT assessments were found noncompliant and afforded little weight, as the OT administered the GOS-E.
Therefore, the Tribunal agreed “that the GOS-E administered by the OT should only be used as an aid and that the GOS-E should be completed by the neuropsychologist”. However, in the case at hand, it was noted that neither parties’ neuropsychologist administered the GOS-E. The Tribunal further found that “the assessments completed on behalf of both parties have their limitations as the applicant’s assessors exaggerated his disability ratings in certain categories and the respondent’s underestimated them.
Chaffey’s assessors opined that he was “unable to work except in a sheltered environment or non-competitive job, which is consistent with a lower moderate disability and meets the CAT threshold.” In contrast, Wawanesa’s assessors found there to be a “reduced capacity to work which is an upper moderate disability and does not meet CAT status.” Ultimately, the Tribunal found that Chaffey’s assessors’ opinion was “more consistent with the medical evidence at the time of their assessment”, specifically referencing the opinions of his treating neuropsychologist and family physician. Therefore the lower moderate disability was confirmed, as a result Chaffey met the test for the CAT threshold under the GOS-E. While not required, the Tribunal did not find there to be a Low Moderate Disability with respect to either social/leisure activities or relationships with family or friends.
It was also acknowledged that Chaffey, despite the severity of the impairments, continued to function in other aspects of his life. He “continued to officiate weddings, he volunteered at a food bank for a period of time, he wrote and recorded new music, he still rides his motorcycle, and he performs at live music venues. He also continued with his university studies part-time with some accommodations. The applicant testified that while he has continued with these activities, they have been at a significantly reduced capacity. I believe him.” Wawanesa countered with surveillance evidence of Chaffey independently performing at a bar in which he sang and played the harmonica and guitar simultaneously”. However, given there was no volume with the surveillance, it was afforded limited weight, as “the quality of the applicant’s performance is unknown.”
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